For Mains: New reservation- significance, concerns, legal hurdles, conflict with basic structure of the constitution and way ahead.

Context: President Ram Nath Kovind has given his assent to the bill providing 10% reservation in jobs and educational institutions to the economically weaker sections in the general category.

The legislation will be known as the Constitution (103 Amendment) Act, 2019 and it shall come into force on such date as the Centre notifies.

The 10% reservation will be in addition to the existing cap of 50% reservation for the Scheduled Castes, Scheduled Tribes and the Other Backward Classes, taking the total reservation to 60%.

124th Constitutional Amendment- This amended two fundamental rights:

Article 15, which prohibits discrimination on the grounds of race, religion, caste, sex or place of birth.

Article 16 which prohibits discrimination in employment in government office.

It also makes a note of the Article 46, which asks the government to promote the educational and economic interests of the weaker sections of the society.

It provides reservation for:

People who have an annual income of less than Rs.8 lakhs.

People who own less than five acres of farm land.

People who have a house lesser than 1,000 sq feet in a town (or 100 sq yard in a notified municipal area).

Debatable problems:

The major hurdle for the implementation of the recent Act is the legal scrutiny.

The Supreme Court has ruled multiple times against exceeding its 1992 formula of a maximum of 50% reservation (Indira Sawhney v. Union of India).

However, there are states like Tamil Nadu that go beyond this limit and the Supreme Court has upheld the state’s policy many a time. Presently, the state has a ‘69 per cent quota system’.

What is the basic structure?

The idea of basic structure was originally suggested by Justice M Hidayatullah & Justice J R Mudholkar in Sajjan Singh (1965). It has been borrowed from Germany.

In Kesavananda Bharati (1973), the Supreme Court held that Parliament can amend the Constitution but does not have power to destroy it — no amendment can change its “basic structure”. The court said that under Article 368, something must remain of the original Constitution that the new amendment would amend.

However, the court did not define what basic structure is, and only listed a few principles — federalism, secularism, democracy — as being part of basic structure. Since then, the court has been adding new features to the concept of basic structure. In subsequent years, courts extended the doctrine even to ordinary legislation and executive actions.

Does it violate fundamental rights?

From the Poona Pact (1932) between M K Gandhi and Dr B R Ambedkar to the Constituent Assembly debates, reservation was talked about in the context of social backwardness of classes.

The 124th Amendment makes a departure by extending reservation to the economically disadvantaged. Article 15(4), inserted by the First Amendment in 1951, enables the state to make special provisions for socially and educationally backward classes.

Article 16(4) permits reservation for any backward class if it is not adequately represented in services under the state.

Thus, reservation is not a right but, if granted, it will not be considered a violation of the right to equality.

Article 46 and the upper caste:

Article 46, which is a non-justiciable Directive Principle, says that the state shall promote educational and economic interests of “weaker sections”, in particular SCs and STs, and protect them from “social injustices” and “all forms of exploitation”.

While the 124th Amendment mentions Article 46 in its statement and objects, it seems the government overlooked the fact that upper castes neither face social injustice nor are subjected to any form of exploitation.

Moreover, the Constitution makes provisions for commissions to look into matters relating to implementation of constitutional safeguards for Scheduled Castes (Article 338), Scheduled Tribes (338A) and Socially and Educationally Backward Classes (339), but has not created any commission for the economically backward classes.

Way ahead:

Equality in India has been held to be the very essence of democracy and rule of law. While equality permits reasonable classifications, these are to be based on intelligible differentia, should have rational objects to achieve and should not be fanciful and arbitrary.

In this case, the court has to examine the equality code of the Constitution and whether the state has considered and valued the circumstances justifying it, to make reservation. This would require that the state’s decision is rational and non-arbitrary. The state has to show quantifiable data to satisfy the court as to inadequacy of representation of economically backward classes.

Sources: Indian Express.

Mains Question: The policy of reservation has transformed from an affirmative action policy to an anti-poverty measure. Critically examine.